Free Speech At The Mall? OMG, Yes!

Published: August 15, 2011

SAN DIEGO – A mall that is setting strict limits on how and when someone can register voters is violating the California Constitution, and the San Diego ACLU is fighting to get the restrictive policies changed.

After requesting permission to register voters at the mall, Mark Shok received a free speech policy and application materials from the Westfield North County Shopping Mall in Escondido. The policy contained a number of provisions that are unconstitutional under the California Constitution.

“Frankly, I am shocked that after so many clear court decisions on this matter that Westfield could have gotten this so wrong,” said David Blair-Loy, legal director for the San Diego ACLU.

Malls must allow free speech, with certain exceptions to reasonable time, place and manner, as established in a landmark ruling decades ago under Robins v. Pruneyard Shopping Center. California law requires private shopping centers to respect free speech rights in their common areas, on the grounds that shopping centers are the modern equivalent of the town square.

“California law is really settled on this,” said Blair-Loy. “The mall’s policy has already been invalidated on its face because it discriminates based on content and prohibits conversations among the public.” The Westfield Mall policy requires an advance application from anyone who “wishes to engage strangers in conversations on topics unrelated to the mall.” Under Pruneyard, content-based restrictions on speech at shopping centers are subject to strict scrutiny and are presumed to be invalid. Any regulations on content must be justified by legitimate concerns that are not related to any disagreement with the message.

The Westfield Mall free speech policy contains a number of complicated, problematic clauses, including different treatment of labor-related speech and other speech, a ban on the distribution of “invitations, passes or coupons,” a vague ban on performances, demonstrations and “unprofessional signs,” and a provision requiring applicants to attach copies of any and all items intended to be used, including “text, artwork and pictures on any petitions, literature, leaflets, voter registration materials, signs and displays.” The California Court of Appeal (4th District) said, “Rules are generally considered content-based when the regulating party must examine the speech to determine if it is acceptable.”

“Westfield Mall’s policy is also invalid from the get-go because of its unconstitutional restrictions on time, place and manner restrictions,” said Blair-Loy. Some of those troubling restrictions include: – Confining free speech activity to unreasonably small “Designated Areas” – Ban on free speech on “Peak Traffic Days” – Ban on speech intended to reach more than one person at a time – Prohibition on more than three people in a Designated Area at once – Requirement that applicants show a state-issued ID and – Ban on parking in the mall lot while engaging in expressive activity.

“People have the right to free speech and to shop at the mall,” said Blair-Loy. “They shouldn’t have to report to the mall police before deciding whether to talk to the person standing next to them in line or to register voters. Westfield North County Mall is way out of line with constitutional standards here, and needs to tear up its current free speech policy and start over again.”

The San Diego ACLU sent a demand letter asking for the policy to be repealed or thoroughly overhauled, and said the organization would take the legal steps necessary to ensure that free speech rights are not infringed at the mall.